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Friday, September 3, 2010

Word Choice and Persuasion

This post was written by Professor Joe Lester, Director of Advocacy Programs & Professor of Law at Faulkner University in Montgomery, Alabama.

It is not what you say that matters, but rather what the jury hears that counts.

My seven-year-old boy Christian was in the back of our family van singing “chicken nugget, chicken nugget.” While the words were peculiar, the tune was familiar. When asked what he was singing he merely repeated “chicken nugget, chicken nugget.” Figuring it to be a song from his imagination I wondered about the origin – fearing it was going to be a request for fast food. I was surprised to hear him say that he did not make up the song; he heard it on the radio. He once again sang “chicken nugget, chicken nugget” but this time the tune struck a chord. “Christian,” I said, “I am pretty sure the words to that tune are ‘Rick and Bubba, Rick and Bubba.’” The song was an advertisement for the national morning radio show. Christian laughed and told me that I was being silly and that I did not know what I was talking about. He then sang once again “chicken nugget, chicken nugget” this time with a slight giggle as he believed his father to be from another planet.

How many times does our story-telling fall off-track because of unintentional miscommunication? Students often do not give enough attention to their choice of words. When our language is sloppy we lose the ability to control our message. To illustrate this point I do the following exercise.

I ask my students to yell out the first thing that comes to their mind after I give a description of a person. I then say the following one at a time after waiting for responses from the class after each: the woman who takes care of my children; the woman who cleans my house; the woman I hooked-up with last night; my first wife; my current wife; my life partner; my best friend; and my co-pilot. All of these are descriptions of my wife (FYI: don’t ever actually introduce your wife as your “first wife” unless you want to sit alone for the whole evening). But each of these phrases has baggage. They lead the listener to make incorrect assumptions merely because of the sloppy language. Is this really a danger? Absolutely. It only takes one juror perceiving the evidence in a contrary manner to hang the jury.

The inferences a jury draws should be carefully crafted by the advocate so that they can persuade the whole group. Leaving individual jurors to draw inferences based solely on their own experiences will diffuse the effectiveness of the presentation. I often use the common exercise of having a student try to describe a person in a picture to the class to see if they can get the jury to all visualize the exact same person. One time a student described a person in the picture as a “typical Auburn student.” I could see by the reaction of the class that the description created many different images in the students’ minds. That comment produced a wide spectrum of images ranging from very positive to very negative depending on their predisposition regarding the Alabama/Auburn rivalry. While it made perfect sense to the story-teller the listener was confused. Confusion does not assist persuasion.

So how do you check your language? A simple solution would be to bring in an outsider to observe your presentation. Stop periodically to ask the outsider what they know and what they think the case is about. If your story and the outsider’s story match, your language is sufficiently precise. If they do not match, you have to identify the problem language. To make that task easier ask the outsider often what they are thinking -- not just at the end. Just because it was said, does not mean it was heard. At the end of the day all that matters is what the jury hears.

You can’t stop a wildcard like Christian from misinterpreting the information, but you can minimize the danger by carefully selecting your words and understanding that everything the jury hears will leave an impression. Just make sure it is the one you meant to leave.

1 comment:

  1. I love Joe's post about word choice and persuasion. I constantly wrestle with trying to pick the right words, especially when I am thinking on my feet. Much of the confusion I've caused in my life as a teacher and advocate has come from picking words that were not quite right for the occasion, were slightly confusing, or in some cases, were totally confusing.

    I intend to try Joe's word choice exercise in class. It's a quick way to illustrate one of the most important points an advocate needs to learn.

    On a related issue, I sometimes use video clips to help students realize the importance of painting descriptive word pictures in the courtroom. I'll show a clip to a student. Someone else then interviews the student and prepares a direct examination. The direct examination takes place in front of the entire class. We then watch the video clip as a group and talk about how well or poorly the advocate did in using the right words to tell a complete story.